Irma Allen v. Ollies Bargain Outlet Inc ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-2121
____________
IRMA ALLEN; BARTLEY MICHAEL MULLEN, Jr.,
Individually and on behalf of all others similarly situated
v.
OLLIE’S BARGAIN OUTLET, INC.,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-19-cv-00281)
District Judge: Honorable William S. Stickman, IV
____________
Argued: March 15, 2022
Before: JORDAN, KRAUSE, and PORTER,
Circuit Judges.
(Filed: June 24, 2022)
____________
Richard L. Etter [ARGUED]
Ogletree Deakins
One PPG Place
Suite 1900
Pittsburgh, PA 15222
David L. Schenberg
Ogletree Deakins
7700 Bonhomme Avenue
Suite 650
St. Louis, MO 63105
Counsel for Appellant
R. Bruce Carlson
Carlson Brown
222 Broad Street
Sewickley, PA 15143
Gary F. Lynch
Elizabeth Pollock-Avery
Kelly K. Iverson
Jamisen A. Etzel [ARGUED]
Nicholas Colella
Lynch Carpenter
1133 Penn Avenue
5th Floor
Pittsburgh, PA 15222
Counsel for Appellees
2
____________
OPINION OF THE COURT
____________
PORTER, Circuit Judge.
Irma Allen and Bartley Mullen are disabled and need
wheelchairs to move about. Hoping to find “Good Stuff
Cheap,” they went shopping at two different bargain stores
owned by Ollie’s Bargain Outlet, Inc. (“Ollie’s”). But once
inside Ollie’s, they encountered an obstacle course: pillars,
clothing racks, and boxes blocked their way. Dissatisfied with
their shopping experiences, they filed a putative class action
against Ollie’s under Title III of the Americans with Disabili-
ties Act (“ADA”). They seek permission to sue on behalf of
every similarly disabled individual who shops at any Ollie’s
store in the United States and has or will encounter interior
access barriers. The District Court certified the proposed class.
We will vacate and remand. The District Court abused its dis-
cretion by certifying an overly broad class based on inadequate
evidence of numerosity and commonality.
I
A
Ollie’s owns and operates over four hundred retail
stores across twenty-nine states.1 Allen and Mullen visited two
different Ollie’s stores in Monaca and New Castle,
1
Ollie’s Bargain Outlet Holdings, Inc., 2021 Annual Report
(Form 10-K) at 1 (“We have grown to 431 stores in 29 states
as of January 29, 2022.”).
3
Pennsylvania. There, they encountered obstacles blocking their
path of travel, including inventory on the floor, clothing racks
placed too close together, boxes, pallets, and structural pillars.
Pictures taken later at these stores show aisles similarly nar-
rowed by inventory carts, pallets, columns, boxes, or goods on
the floor. Suspecting a pattern, Allen and Mullen’s lawyers
hired investigators to take photographs and measure aisle
width at several Ollie’s stores in Pennsylvania. After this pre-
liminary investigation, Allen and Mullen sued Ollie’s under
Title III of the ADA.
B
Title III of the ADA prohibits retailers like Ollie’s from
discriminating “on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations” they offer to the public. 42
U.S.C. § 12182(a). This general prohibition has several spe-
cific definitions that extend disability discrimination beyond
disparate treatment or invidious discrimination. Plaintiffs fo-
cus their complaint and argument on three specific definitions
of Title III discrimination. We discuss these for background.
First, Title III discrimination includes “a failure to make
reasonable modifications in policies, practices, or procedures,
when such modifications are necessary to afford” goods, ser-
vices, and the like to “individuals with disabilities.” Id.§ 12182(b)(2)(A)(ii). “To comply with this command, an indi-
vidualized inquiry must be made to determine whether a spe-
cific modification for a particular person’s disability would be
reasonable under the circumstances as well as necessary for
that person . . . .” PGA Tour, Inc. v. Martin, 532 U.S. 661, 688
(2001).
4
Second, Title III discrimination includes “a failure to
remove architectural barriers . . . in existing facilities, . . .
where such removal is readily achievable.” 42 U.S.C.
§ 12182(b)(2)(A)(iv). The Department of Justice gives the
term “architectural barriers” a broad scope. For example,
shelves, tables, chairs, vending machines, display racks, and
furniture are treated as “architectural.” 28 C.F.R.
§ 36.304(b)(3), (4). Architectural barriers must be removed
only when “readily achievable,” a standard that “means easily
accomplishable and able to be carried out without much diffi-
culty or expense.” 42 U.S.C. § 12181(9).
Third, facilities built or altered after the ADA’s effec-
tive dates must be “readily accessible to and usable by” the dis-
abled. 42 U.S.C. § 12183(a); 28 C.F.R. §§ 36.401(a)(1),
402(a)(1). To be readily accessible, a facility must comply with
the standards for accessible design. 28 C.F.R. § 36.406. Under
section 403.5.1 of the most recent 2010 standards, aisles must
generally be at least thirty-six inches wide, but can measure as
little as thirty-two inches wide for short distances. 36 C.F.R.
pt. 1191, app. D. Department of Justice rules require facilities
to maintain accessible aisles “in operable working condition.”
28 C.F.R. § 36.211(a).
Plaintiffs’ “core contention” is that “Ollie’s deliberately
directs the placement of merchandise within aisles,” causing a
corporate-wide failure to maintain accessible aisles. Appellees’
Br. 28. Under plaintiffs’ theory, retail stores fail to maintain
accessible aisles “in operable working condition” if they inten-
tionally and recurringly block them with movable objects, a
position supported by Ninth Circuit precedent. See Chapman
v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001, 1009 (9th Cir.
2015) (retail store violated ADA when it had a pattern of
obstructing aisles with objects like “step ladders”). Plaintiffs
5
claim that Ollie’s failure to modify its corporate policies to pre-
vent this alleged merchandising practice is discriminatory, and
they also suggest that some or all merchandising goods count
as “architectural” barriers that must be removed.
C
After completing targeted discovery, plaintiffs moved
to certify the following class under Federal Rule of Civil Pro-
cedure 23(b)(2):
All persons with qualified mobility disabilities
who have attempted, or will attempt, to access
the interior of any store owned or operated by
[Ollie’s] within the United States and have, or
will have, experienced access barriers in interior
paths of travel.
App. 171. Before proceeding as a class under Rule 23(b)(2),
plaintiffs had to satisfy Federal Rule of Civil Procedure 23(a).
Under Rule 23(a), they had to “demonstrate, first, that ‘(1) the
class is so numerous that joinder of all members is impractica-
ble; ‘(2) there are questions of law or fact common to the class;
‘(3) the claims or defenses of the representative parties are typ-
ical of the claims or defenses of the class; and ‘(4) the repre-
sentative parties will fairly and adequately protect the interests
of the class.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
345 (2011) (quoting Fed. R. Civ. P. 23(a)). To satisfy Rule
23(b)(2), plaintiffs then had to show that Ollie’s “has acted or
refused to act on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole.” Id. at 345–46
(quoting Fed. R. Civ. P. 23(b)(2)).
6
Before the District Court, Plaintiffs argued that joinder
of class members was impracticable given the size of the class.
They introduced three strands of evidence to support this
assertion. First, data from the U.S Census Bureau’s 2018
American Community Survey, estimating the number of peo-
ple with ambulatory disabilities—meaning serious difficulty
walking or climbing stairs—for each zip code with an Ollie’s
store. Second, twelve emails received by Ollie’s customer ser-
vice over three years from or on behalf of patrons that use
wheelchairs or have a mobility disability. Third, a declaration
stating that over seven days, sixteen persons using wheelchairs
or scooters were recorded by video at the two Ollie’s locations
where Allen and Mullen shopped.
Plaintiffs at first argued there were common questions
based on Ollie’s alleged failure to adopt ADA-specific stand-
ard operating procedures and employee training practices. In
their reply brief, plaintiffs urged a narrower commonality
argument, one they now press on appeal. They asserted that
Ollie’s “employees” have a common “practice” of “placing
merchandise displays and stock in locations that block or limit
accessibility,” and they attributed this alleged practice to
Ollie’s corporate “merchandise stocking and display prac-
tices.” App. 901–02. To support this commonality argument,
plaintiffs cited allegations in their complaint, Allen’s and
Mullen’s depositions, and photographs of Pennsylvania stores
showing a “pattern and practice of path of travel obstructions.”
App. 901 n.8, 902 n.9.
D
The District Court certified the proposed class. The
District Court agreed with plaintiffs that joinder of all class
members would be impracticable. Allen v. Ollie’s Bargain
7
Outlet, Inc., No. 2:19-CV-281, 2021 WL 1152981, at *6 (W.D.
Pa. Mar. 26, 2021). Adding Allen and Mullen, the twelve cus-
tomer emails, and the sixteen individuals observed in two
stores over seven days, the District Court concluded that plain-
tiffs “have concretely shown that thirty people with potential
mobility disabilities are customers of Ollie’s stores.” Id. In the
District Court’s judgment, the circumstantial evidence of thirty
potentially disabled patrons, together with the community sur-
vey estimates, was enough. Id. As the District Court put it,
“[t]he statistical evidence presented already indicates that there
is a good chance that the proposed class is numerous, and any
speculation accompanying the statistical data alone is over-
come by the addition of the concrete, case-specific evidence of
written complaints and video footage.” Id. at *6 (citation omit-
ted). Ollie’s objected to the use of the customer complaints as
inadmissible hearsay, but the District Court overruled the
objection, holding that non-expert evidence like the customer
complaints need not be admissible to certify a class. Id. at *5
n.5.
The District Court also held the proposed class pre-
sented common questions. It relied on a syllogism. First,
“Ollie’s policies are uniform and company-wide.” Id. at *7.
Second, “[i]f Ollie’s policies and procedures do, in fact, cause
access barriers to unlawfully restrict individuals with disabili-
ties from obtaining their desired goods, then proposed mem-
bers who endured violations have suffered the same injury, the
resolution of which will resolve a central issue in one fell
stroke.” Id. “As a result,” the District Court held, “Plaintiffs
have satisfied their burden of showing by a preponderance of
the evidence that there are questions of law or fact common to
the proposed class.” Id. After finding the remaining require-
ments of Rule 23(a) were met, the District Court held that the
8
proposed class satisfied Rule 23(b)(2) because “[a]n injunction
requiring the removal of the existing access barriers, and the
modification of Ollie’s policies to prevent the use of access
barriers restricting disabled individuals’ use and enjoyment of
Ollie’s goods would provide appropriate relief to the proposed
class.” Id. at *8.
This appeal followed.
II
The District Court had subject-matter jurisdiction under
28 U.S.C. § 1331. We have appellate jurisdiction under Rule
23(f) and 28 U.S.C. § 1292(e). Mielo v. Steak ’n Shake
Operations, Inc., 897 F.3d 467, 473–74 (3d Cir. 2018). If the
case proceeds to summary judgment or trial, the result may be
different, but Allen and Mullen have adequately alleged Article
III standing at this stage. Id. at 478–82.
We review a class certification order for abuse of dis-
cretion, which occurs if the trial court’s decision rests on a
clearly erroneous finding of fact, an errant conclusion of law,
or an improper application of law to fact. Marcus v. BMW of
N. Am., LLC, 687 F.3d 583, 590 (3d Cir. 2012). We review
questions of law, including whether the trial court applied the
correct legal standard, de novo. Steak ’n Shake, 897 F.3d at
474.
III
A
Under Rule 23, the proposed class must be “so numer-
ous that joinder of all members is impracticable.” Fed. R. Civ.
P. 23(a)(1). This “rule prevents putative class representatives
9
and their counsel, when joinder can be easily accomplished,
from unnecessarily depriving members of a small class of their
right to a day in court to adjudicate their own claims.” Marcus,
687 F.3d at 594–95. As with every Rule 23 requirement, plain-
tiffs must show the class is numerous enough by a preponder-
ance of the evidence. Steak ’n Shake, 897 F.3d at 483–84. We
presume joinder is impracticable when the potential number of
class members exceeds forty. Id. at 486. This is a guidepost:
showing the number of class members exceeds forty is neither
necessary nor always sufficient. Marcus, 687 F.3d at 595. “The
text” of Rule 23(a)(1) is “conspicuously devoid of any numer-
ical minimum required for class certification.” In re Modafinil
Antitrust Litig., 837 F.3d 238, 249 (3d Cir. 2016). But while a
class of forty-one does not automatically satisfy Rule 23(a)(1),
a putative class that size faces a relaxed burden under our prec-
edent. By contrast, the “inquiry into impracticability should be
particularly rigorous when the putative class consists of fewer
than forty members.” Id. at 250.
In recent opinions, we have given the numerosity re-
quirement “real teeth.” Steak ’n Shake, 897 F.3d at 484. When
plaintiffs cannot directly identify class members, they “must
show sufficient circumstantial evidence specific to the prod-
ucts, problems, parties, and geographic areas actually covered
by the class definition to allow a district court to make a factual
finding. Only then may the court rely on ‘common sense’ to
forgo precise calculations and exact numbers.” Marcus, 687
F.3d at 596. And “where a putative class is some subset of a
larger pool, the trial court may not infer numerosity from the
number in the larger pool alone.” Hayes v. Wal-Mart Stores,
Inc., 725 F.3d 349, 358 (3d Cir. 2013). In Steak ’n Shake, for
example, census data showing “there are between 14.9 million
to 20.9 million persons with mobility disabilities who live in
10
the United States” was not enough to show numerosity under
Rule 23(a)(1). 897 F.3d at 486. Applying these principles, we
conclude the District Court abused its discretion when it found
that plaintiffs had met their numerosity burden.
1
Plaintiffs argue that the 2018 American Community
Survey estimates of persons with mobility disabilities would
alone allow us to affirm the District Court’s numerosity find-
ing. But these survey estimates prove little. The survey
measures anyone who reports serious difficulty walking or
climbing steps. Plaintiffs acknowledge that the more relevant
number of disabled persons—individuals needing wheel-
chairs—is about an order of magnitude lower, and they ask us
to extrapolate more accurate regional numbers from different
national census estimates. The national census study they cite
estimates that persons needing wheelchairs are a small fraction
of the population that has severe difficulty walking or climbing
stairs. See Mathew W. Brault, U.S. Census Bureau, Americans
with Disabilities: 2010, P70-131, Table A-1, 17 (July 2012)
(8.3% of the U.S. population fifteen and older has a severe
mobility disability, but only 1.5% uses a wheelchair),
https://perma.cc/5V96-H5DS. But extrapolating the relevant
number across every region would be hazardous speculation.
“Trained experts commonly extrapolate from existing data.”
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Generalist
Article III judges typically do not.
Regional population statistics like the survey are in any
event insufficient. The District Court was right “that a district
court’s finding premised almost exclusively on statistical data
is not enough to satisfy numerosity—something more is
required.” Ollie’s, 2021 WL 1152981, at *6. Steak ’n Shake
11
rejected reliance on statistical data documenting the number of
disabled people not because it was national in scope, but
because it did not allow us to “determine—rather than specu-
late about—the portion of those disabled individuals who have
actually patronized a relevant Steak ’n Shake restaurant, let
alone the portion who have experienced or will experience an
ADA violation at one of those restaurants.” 897 F.3d at 486.
The same remains true for regional population statistics.
Regional estimates of a disabled population showing proximity
to a store may be more probative of disabled customers than
national ones, depending on the quality and reliability of the
study’s statistical methods and practices, but they alone do not
support a finding that a class is numerous. Consider Ollie’s
store in Monaca, Pennsylvania. The survey suggests there are
about one thousand persons with mobility disabilities living in
the same zip code. Plaintiffs would extrapolate that about a
tenth of these residents, or one hundred Monaca residents, need
wheelchairs to move about. Even if that extrapolation is
accurate, however, we would still be left with no basis to
determine what portion of those one hundred wheelchair-
bound residents of Monaca are customers of Ollie’s, let alone
what portion have suffered a common ADA injury. We cannot
infer numerosity from this large pool of residents.
The “something more” required by Steak ’n Shake is
concrete evidence of class members who have patronized a
public accommodation and have suffered or will likely suffer
common ADA injuries. We reject plaintiffs’ argument that the
community survey estimates alone are enough to carry their
burden of proof.
12
2
We next turn to the other two strands of non-statistical
evidence the District Court thought set this case apart from
Steak ’n Shake. While this evidence is probative, after examin-
ing all the evidence, we are still left with head-scratching spec-
ulation, insufficient to support a factual finding.
a.
The first strand of non-statistical evidence is plaintiffs’
declaration stating that over seven days, sixteen persons using
wheelchairs or scooters were recorded by video at the two
Ollie’s locations where Allen and Mullen shopped.2 We agree
that this declaration is “probative of the number of potentially
disabled individuals visiting Ollie’s stores.” Ollie’s, 2021 WL
1152981, at *5 n.6. But it is not enough to satisfy plaintiffs’
burden of proof on numerosity, even considered alongside the
community survey of disabled residents.
For one, the declaration does not allow us to determine
what portion of disabled residents shop at Ollie’s. Plaintiffs ask
us to extrapolate customer numbers from a limited video sam-
ple of two stores over seven days, arguing the video footage
suggests more than three hundred wheelchair-using customers
2
Ollie’s does not challenge the admissibility of this
declaration, and for good reason. When a class certification
“motion relies on facts outside the record,” Federal Rule of
Civil Procedure 43(c) allows trial courts to “hear the matter on
affidavits.” And the Judicial Code permits declarations instead
of affidavits. 28 U.S.C. § 1746. Regardless of whether the
Federal Rules of Evidence govern, the declaration was
properly before the District Court.
13
shop at Ollie’s every day. But that extrapolation rests on spec-
ulation, not a reasonable inference. The video, for starters, does
not allow us to determine what portion of those wheelchair-
using customers are disabled. To be disabled, the customers
would need to have “a physical or mental impairment that sub-
stantially limits one or more major life activities,” including
“walking.” 42 U.S.C. § 12102(1)(A), (2)(A). At least some
wheelchair- or scooter-using customers may not qualify. Cf.
Richardson v. Chicago Transit Auth., 926 F.3d 881, 884 (7th
Cir. 2019) (holding extreme obesity does not qualify as a phys-
ical impairment if it is not the result of a physiological disorder
or condition). To be sure, we agree the District Court does not
need to “determine as a matter of law that each of the sixteen
individuals seen using a wheelchair are mobility disabled un-
der the ADA before considering the photographs.” Ollie’s,
2021 WL 1152981, at *5 n.6. In this case, the District Court
used common sense to infer that at least some of the customers
using wheelchairs are likely disabled. Id. We cannot say that
common-sense inference was an abuse of discretion. It is fair
to infer that at least some of the wheelchair-using customers
are likely disabled under the ADA. Even if we accept the
District Court’s conclusion, however, the number of disabled
customers observed in the video could range from zero to six-
teen. Some evidence buttressing a correlation between the
wheelchair-using and ADA-disabled populations would signif-
icantly strengthen this evidence.
Still, even assuming all sixteen customers were likely
disabled and that none of them were repeat visitors, we have
no basis to assume that the rate of wheelchair-using customers
observed in the video footage sample is representative of
Ollie’s stores. Before we can extrapolate the limited sample
across four hundred stores, our precedent requires at least some
14
evidence supporting a factual finding that disabled customers
visit Ollie’s “in roughly equal proportions” to the rate observed
in the video. Marcus, 687 F.3d at 596. Otherwise, we remain
in the realm of speculation, not common-sense inferences. And
even if the declaration allowed us to determine the pool of
wheelchair-bound Ollie’s customers, the declaration still does
not allow us to “determine—rather than speculate about—the
portion of those disabled individuals who . . . have experienced
or will experience an ADA violation at one of those” stores.
Steak ’n Shake, 897 F.3d at 486. The declaration does not sug-
gest that the wheelchair-using customers observed in the video
suffered an ADA violation in common with the class. At best,
the declaration is evidence of the general pool of wheelchair-
using Ollie’s customers, not the more relevant subset of
wheelchair-bound customers who have suffered common
ADA injuries. The District Court appears to have assumed that
evidence of injured customers was unnecessary to support
numerosity. See Ollie’s, 2021 WL 1152981, at *6 n.7. If so,
that was error. Evidence establishing the subset of injured cus-
tomers, not just the general pool of wheelchair-using customers
who shop at Ollie’s, is necessary to support a finding that a
class is likely numerous enough. See Marcus, 687 F.3d at 595.
The putative class consists of persons with mobility disabilities
who encountered or will encounter inaccessible aisles at an
Ollie’s store. There may well be millions of wheelchair-bound
Ollie’s customers across all twenty-nine states, but if none of
them suffered or will likely suffer similar class injuries, they
are not class members and do not support a finding of numer-
osity.
b.
The District Court also relied on what it characterized
as “the written complaints of twelve individuals complaining,
15
in one way or another, of various barriers adversely affecting
the navigation of individuals who are wheelchair-bound.”
Ollie’s, 2021 WL 1152981, at *5. Unlike the community sur-
vey or the video, at least some of these customer complaints
support the existence of putative class members with common
ADA injuries. But there are far too few complaints, and not all
of them support the District Court’s finding.
At the outset, we note the parties dispute whether the
customer complaints are admissible as evidence. Ollie’s argues
that the Federal Rules of Evidence apply during the class cer-
tification stage, and that the customer complaints are inadmis-
sible hearsay. Plaintiffs respond that “fact” testimony—as
opposed to expert opinion—need not be admissible to support
class certification. The District Court agreed with plaintiffs,
holding the Federal Rules of Evidence are inapplicable to non-
expert evidence used to certify a class. Ollie’s, 2021 WL
1152981, at *5 n.5. We decline to decide this question. For
even assuming—and it is only an assumption—that the Federal
Rules of Evidence do not govern the admissibility of the cus-
tomer complaints, the record still would not establish numer-
osity.3
To begin, at least one of the twelve customer complaints
does not support membership in the putative class. The rele-
vant email says:
Please pass this on to the management at the
Columbus, GA store. My husband and I recently
visited this store for the first time, and we were
very impressed. My husband is a paraplegic, and
3
Ollie’s has preserved this argument and may raise it again on
remand.
16
uses a wheelchair while shopping. There were
very few places he could not get into, and every
employee he encountered asked if he needed
help. The aisles were clear, and the merchandise
was—for the most part—easy for him to reach.
When we asked for help, it was given cheerfully
and quickly. We enjoyed the experience, and
plan to become regular customers. The employ-
ees of this store went above and beyond, and I
just wanted you to know.
App. 711. The class definition is limited to disabled individuals
who have experienced access barriers in interior access aisles.
This disabled customer reportedly experienced clear aisles at
his local Ollie’s store in Georgia, so he is not a potential class
member. The District Court clearly erred by relying on this
email as evidence of a potential class member.
There may be others. Ollie’s argues that other customer
complaints, closely read, similarly do not support the existence
of class members. For example, Ollie’s argues that the District
Court should have excluded two customer complaints made
outside of Pennsylvania’s two-year statute of limitations for
personal injury claims. The District Court never considered
these arguments. On remand, the District Court should deter-
mine whether the remaining complaints support the existence
of putative class members. To do so, the District Court must be
able to infer from the complaints that an Ollie’s customer with
a mobility disability suffered or will suffer a common ADA
injury that falls within the putative class definition. Otherwise,
the District Court cannot rely on the customer complaints to
determine the existence of putative class members.
17
In any event, even assuming all eleven remaining cus-
tomer complaints support a finding that there are at least eleven
putative class members, and considering the declaration and
the statistical evidence together, as the District Court did, we
still find the evidence far too speculative. To recap, the com-
munity survey tells us nothing concrete about the portion of
disabled residents who shop at Ollie’s stores. The declaration
tells us nothing about what portion of disabled customers suf-
fered common ADA injuries, and little about what number of
disabled residents shop at Ollie’s. And the customer com-
plaints are few. Eleven complaints over almost four years of
company operations are hardly evidence of a sizable class. The
customer complaints overall give us little reason to conclude
that judicial economy supports depriving the apparently small
number of complainants of their day in court by aggregating
their individual claims in a classwide suit.
In short, after considering the record evidence, we have
proof of a class that consists of Allen, Mullen, and at most
eleven others. To establish numerosity, plaintiffs must do more
to prove the existence of actual class members. See In re
Modafinil Antitrust Litig., 837 F.3d at 250 (suggesting a class
of twenty or less would be too small to justify a class action).
If plaintiffs cannot carry the burden on numerosity, Allen and
Mullen may always seek relief individually.
3
While “the number of class members is the starting
point,” trial courts should weigh other factors relevant to the
practicability of joinder under Rule 23(a)(1), including “judi-
cial economy, the claimants’ ability and motivation to litigate
as joined plaintiffs, the financial resources of class members,
the geographic dispersion of class members, the ability to iden-
18
tify future claimants, and whether the claims are for injunctive
relief or for damages.” In re Modafinil Antitrust Litig., 837
F.3d at 250, 253. Plaintiffs argue that factors other than the
numerosity of the class also support the District Court’s finding
that joinder of class members would be impracticable. That
may well be. But the District Court never exercised its broad
discretion to consider these other Rule 23(a)(1) factors, and we
are a court of review, so we decline to weigh these factors for
the first time on appeal. On remand, however, the District
Court remains free to consider plaintiffs’ arguments and decide
whether joinder would be impracticable based on all the rele-
vant factors. We do not decide whether plaintiffs may show
that joinder would be impracticable on this record. We hold
only that the numerosity evidence considered alone is not
enough to satisfy Rule 23(a)(1).
B
A class may be certified only if “there are questions of
law or fact common to the class.” Fed. R. Civ. P. 23(a)(2).
“Commonality requires the plaintiff to demonstrate that the
class members have suffered the same injury. This does not
mean merely that they have all suffered a violation of the same
provision of law.” Dukes, 564 U.S. at 349–50 (citation and
quotation marks omitted). Instead, the claims “must depend
upon a common contention.” Id. at 350. “That common con-
tention, moreover, must be of such a nature that it is capable of
classwide resolution—which means that determination of its
truth or falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke.” Id. This test ensures
that the “claims can productively be litigated at once.” Id.When deciding whether the class raises a common question,
“the court cannot be bashful. It must resolve all factual or legal
disputes relevant to class certification, even if they overlap
19
with the merits—including disputes touching on elements of
the cause of action.” Marcus, 687 F.3d at 591 (quotation marks
omitted).
The District Court abused its discretion when finding
commonality for two reasons. First, it misapplied the relevant
standards and certified a geographically overbroad class. Sec-
ond, as we explained in Steak ’n Shake, a broad term like
“access barriers” does not give rise to a common injury under
the ADA.
1
The District Court found commonality satisfied for a
class consisting of all Ollie’s stores in the United States. The
District Court reasoned that “[i]f Ollie’s policies and proce-
dures do, in fact, cause access barriers to unlawfully restrict
individuals with disabilities from obtaining their desired
goods, then proposed members who endured violations have
suffered the same injury, the resolution of which will resolve a
central issue in one fell stroke.” Ollie’s, 2021 WL 1152981, at
*7. “As a result,” the District Court concluded, “Plaintiffs have
satisfied their burden of showing by a preponderance of the
evidence that there are questions of law or fact common to the
proposed class.” Id. The conclusion does not follow from the
premise.
Before certifying the proposed class, the District Court
must answer the very question it asked: whether plaintiffs have
significant proof that Ollie’s corporate policies, procedures, or
practices in fact cause discrimination by stores nationwide.
Posing a hypothetical common question is not enough to sat-
isfy plaintiffs’ burden of proof. There must be evidence the
class proceeding will likely “produce a common answer.”
20
Dukes, 564 U.S. at 352. By failing to answer the commonality
question, the District Court deferred plaintiffs’ need to show
commonality.
The District Court’s legal error is not harmless. Our
review of the record shows that commonality is not met by a
preponderance of the evidence for this nationwide class. It is
not enough that Ollie’s has corporate policies and that some or
all stores in Pennsylvania pay inadequate attention to aisle
accessibility. Stitching together a corporate-wide class requires
more.
“Rule 23 requires more than allegations, initial evi-
dence, or a threshold showing. It requires a showing that each
of the Rule 23 requirements has been met by a preponderance
of the evidence at the time of class certification.” Ferreras v.
Am. Airlines, Inc., 946 F.3d 178, 184 (3d Cir. 2019). When
proceeding on a corporate-wide basis, the Supreme Court has
required proof of a policy or practice of discrimination before
certifying a corporate-wide class. Dukes, 564 U.S. at 353.
Without a corporate-wide policy that causes discrimination
(including disparate impacts when relevant, as under Title
VII), a plaintiff must have significant proof of a common mode
of exercising discretion that “pervades the entire company,”
not just stores in some states or regions of the country.
Rodriguez v. Nat’l City Bank, 726 F.3d 372, 383–85 (3d Cir.
2013) (quoting Dukes, 564 U.S. at 356). There is no significant
proof of either here.
Like any large retailer, Ollie’s has several corporate pol-
icies governing its stores. These include visual store standards
governing the placement and marketing of goods, general
safety, loss prevention, and maintenance policies, and a “Yes,
I Can” program, requiring stores to retrieve goods for patrons
21
that have trouble accessing them. Ollie’s specifically requires
stores to ensure wheelchairs can pass easily through aisles. So
as in Dukes, Ollie’s “announced policy forbids” the discrimi-
natory conduct alleged by the class—inaccessible interior
aisles. Dukes, 564 U.S. at 353. Ollie’s, to be sure, allows local
stores discretion when maintaining adequate paths of travel for
wheelchairs. But that kind of discretionary decision-making “is
just the opposite of a uniform . . . practice that would provide
the commonality needed for a class action.” Id. at 355. As the
Supreme Court said in Dukes, allowing stores discretion is “a
very common and presumptively reasonable way of doing
business.” Id. It is not evidence of a common corporate-wide
injury.
On appeal, plaintiffs focus on Ollie’s visual store stand-
ards. They argue that the standards emphasize placing as much
stock as possible on the sales floor. For example, they point out
that photographs in the visual standards illustrate items stacked
to the side of aisles as well as tight placement of clothing racks.
Plaintiffs stress in their briefing that Ollie’s visual store stand-
ards are “a plausible explanation,” a “plausible causal connec-
tion,” or “a plausible, direct cause of the proliferation of alleg-
edly discriminatory barriers.” Appellees’ Br. 15, 27. Perhaps.
But plaintiffs must do more than assert a plausible causal
explanation at this stage. They must show that the visual store
standards are more likely than not a common cause of a failure
to maintain accessible aisles across Ollie’s stores in the United
States.
They have not met that burden. There is no proof that
the visual standards cause inaccessible aisles across all Ollie’s
stores nationwide. The investigative record is limited to stores
in Pennsylvania. On this record, we do not know whether the
visual standards “may have resulted in” discrimination “in
22
some regions . . . but not at all in others.” Rodriguez, 726 F.3d
at 385. Proceeding on a corporate-wide basis against a corpo-
ration with over four hundred stores in twenty-nine states
requires more than plausible allegations backed by
Pennsylvania-only evidence.
The only evidence from outside Pennsylvania is less
than a dozen customer emails reporting inaccessible aisles.4
Setting aside the potential inadmissibility of the emails, Dukes
rejected “anecdotal evidence” as “too weak” to support a com-
mon practice. Dukes, 564 U.S. at 358. Dukes involved 120
employee affidavits, signed under penalty of perjury, sharing
stories of employment discrimination by Wal-Mart supervi-
sors. Id. The Supreme Court said these affidavits proved noth-
ing: “More than half of these reports are concentrated in only
6 States (Alabama, California, Florida, Missouri, Texas, and
Wisconsin); half of all States have only one or two anecdotes;
and 14 States have no anecdotes about Wal–Mart’s operations
at all.” Id. The anecdotal evidence here is far weaker than in
Dukes. Less than a dozen email anecdotes over four years, from
a corporation with over four hundred stores in twenty-nine
states and thousands of employees exercising discretion,
“prove nothing at all.” Id. at 358 n.9.
The District Court abused its discretion by certifying a
corporate-wide class on this record. We leave it to the District
Court to decide whether a geographically narrower class lim-
4
As we noted earlier, at least one customer reportedly
experienced clear aisles. Another customer complained about
the same store in Monaca, Pennsylvania, that plaintiff Mullen
visited.
23
ited to some or all Ollie’s stores in Pennsylvania would satisfy
the commonality requirement.
2
The District Court also abused its discretion when find-
ing commonality for a separate reason. The District Court cer-
tified a class embracing all persons with qualified mobility dis-
abilities who have “experienced access barriers in interior
paths of travel.” Ollie’s, 2021 WL 1152981, at *8–9. That class
definition conflicts with our decision in Steak ’n Shake. A class
that includes any and all access barriers is overbroad.
In Steak ’n Shake, the trial court certified a class con-
sisting of persons with qualified disabilities who “encountered
accessibility barriers at any Steak ’n Shake restaurant.” 897
F.3d at 487–88. We reversed the trial court’s commonality
finding for two independent reasons.
First, the class representatives’ alleged injuries were
based on excessively steep parking slopes, but the class was
not limited to restaurant patrons who suffered an injury in a
parking lot. Id. at 489–90. Second, and more relevant here,
even if the class definition were limited to parking facilities,
we observed, “the wide variety of [ADA] regulations . . . reveal
that there are still various types of ADA violations that could
occur specifically in a parking facility.” Id. at 490. Access bar-
riers could include excessively steep parking lots but could also
include inadequate signs. Id. “The wide variety of potential
ADA violations captured in the broad class definition,” we
held, meant that the claims could not be litigated together all at
once. Id.
24
The class definition here similarly applies to any
“access barriers.” Ollie’s, 2021 WL 1152981, at *9. Plaintiffs
argue that Steak ’n Shake is distinguishable because the class
is limited to access barriers in interior paths of travel, not every
part of a store, but that entirely ignores our second reason for
finding no commonality. In Steak ’n Shake, we warned against
the broad term “accessibility barriers,” as it sweeps in a broad
array of potential claims with little in common. The same is
true here. Some “access barriers” are fixtures, like pillars, fixed
tables, or aisle shelves. There is no evidence those types of
fixed barriers result from any common policy or employee
practice. Plaintiffs have not shown that Ollie’s has any central-
ized blueprint or policy that requires stores to build narrow
aisles or place pillars, tables, and shelving in the middle of the
way. Cf. Colorado Cross Disability Coal. v. Abercrombie &
Fitch Co., 765 F.3d 1205, 1216–17 (10th Cir. 2014) (porch
design common to all 231 stores involved raised common
question). Without evidence of a centralized store blueprint,
we cannot say claims against those types of access barriers in
interior paths of travel can be productively litigated together.
On appeal, plaintiffs focus their argument on movable
barriers like merchandising, clothing racks, inventory carts,
and the like. Plaintiffs mainly argue that Ollie’s stores violate
their obligation to maintain 36-inch-wide accessible aisles by
recurringly placing merchandising in the way. But that is not
the class the District Court certified. At plaintiffs’ request, the
District Court certified a class that applies to any kind of access
barrier in interior paths of travel, not just merchandising wares
blocking accessible aisles. We cannot cure the overbreadth of
the class definition on appeal. We leave it to the District Court
to decide whether a narrower class limited to particular mer-
chandising wares or particular merchandising display practices
25
blocking interior aisles could satisfy the commonality require-
ment.
* * *
Plaintiffs have failed to clear the first two hurdles of
Rule 23(a). We will vacate and remand. We need not decide
whether the remaining requirements of Rule 23 were satisfied.
On remand, however, the District Court should clarify what
classwide legal theory or theories of liability plaintiffs are pur-
suing and determine whether each is suitable for classwide
proof and common relief. As we have explained, trial courts
must include in the certification order or opinion “(1) a readily
discernible, clear, and precise statement of the parameters
defining the class or classes to be certified, and (2) a readily
discernible, clear, and complete list of the claims, issues or
defenses to be treated on a class basis.” Steak ’n Shake, 897
F.3d at 488 n.21. Trial courts must then “determine what ele-
ments plaintiffs would have to prove under that theory to reach
a finding of liability and relief, and then assess whether this
proof can be made within the parameters of Rule 23.” Hohider
v. United Parcel Serv., Inc., 574 F.3d 169, 197 (3d Cir. 2009).
And under Rule 23(b)(2), the provision under which plaintiffs
here seek class certification, trial courts must explain how
classwide relief would be appropriate for each legal injury.
“Rule 23(b)(2) applies only when a single injunction or declar-
atory judgment would provide relief to each member of the
class. It does not authorize class certification when each indi-
vidual class member would be entitled to a different injunction
or declaratory judgment against the defendant.” Dukes, 564
U.S. at 360.
There are significant cohesion concerns with some of
the theories of classwide relief advocated by plaintiffs. For
26
example, to the extent plaintiffs seek removal of “architectural
barriers” in Ollie’s existing facilities, liability turns on a variety
of individualized factors, including “the nature and cost of” the
steps needed to remove each barrier. 42 U.S.C. § 12181(9)(A).
Common proof and common relief relevant to that theory may
prove elusive. On remand, the District Court must address
these differing ADA standards and rules to determine whether
common proof and common relief would be available for each
distinct claim raised by the putative class.
27
PORTER, Circuit Judge, concurring.
Today, we sidestep one of the principal legal issues
raised by this appeal: whether the Federal Rules of Evidence
apply to fact evidence introduced in support of class certifica-
tion. Respectfully, I see no reason to duck the question. The
issue is properly presented and adequately briefed. The District
Court may still need to answer this question on remand. And
courts are divided. By our indecision, we prolong needless
uncertainty in an important area of the law, and we undermine
the uniformity required by the Federal Rules of Evidence. I
would prefer to end any lingering uncertainty now, by holding
that statutory text and precedent require applying the Federal
Rules of Evidence before certifying a class under Rule 23.
I
As the Supreme Court has emphasized, “Rule 23 does
not set forth a mere pleading standard. A party seeking class
certification must affirmatively demonstrate his compliance
with the Rule—that is, he must be prepared to prove that there
are in fact sufficiently numerous parties, common questions of
law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
350 (2011). “This calls for a rigorous analysis that usually
requires courts to make factual findings and legal conclusions
that overlap the underlying merits of the suit.” Mielo v. Steak
‘n Shake Operations, Inc., 897 F.3d 467, 482 (3d Cir. 2018).
In Blood Reagents, we held rigorous analysis means
“that a plaintiff cannot rely on challenged expert testimony . . .
to demonstrate conformity with Rule 23 unless the plaintiff
also demonstrates, and the trial court finds, that the expert tes-
timony satisfies the standard set out in Daubert.” In re Blood
Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015). We
rejected the trial court’s acceptance of evidence that “could
evolve” into admissible form later. Id. at 186. Daubert, of
course, is based on Federal Rule of Evidence 702. See Daubert
v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589–92 (1993).
So, under Blood Reagents, expert evidence used to certify a
class action must be admissible under Federal Rule of
Evidence 702.
We have never addressed whether fact evidence, rather
than expert opinion, must likewise be admissible. The District
Court rejected Ollie’s hearsay objection to the customer ser-
vice emails by holding that non-expert evidence used to certify
a class need not be admissible. See Allen v. Ollie’s Bargain
Outlet, Inc., No. 2:19-CV-281, 2021 WL 1152981, at *5 n.5
(W.D. Pa. Mar. 26, 2021). That conclusion conflicts with the
Federal Rules of Evidence.
The Federal Rules of Evidence are an exercise of legis-
lative authority, so we read the rules “as we would any statute.”
Daubert, 509 U.S. at 587. “The specific courts and proceedings
to which the rules apply, along with exceptions, are set out in
Rule 1101.” Fed. R. Evid. 101(a). Rule 1101 says that the rules
apply to “United States district courts” and in “civil cases and
proceedings.” Fed. R. Evid. 1101(a), (b). That means all civil
cases and proceedings unless an exception applies.
Rule 1101 makes three exceptions, but as the Seventh
Circuit has noted, Rule 23 proceedings are “not among the pro-
ceedings excepted.” Mars Steel Corp. v. Cont’l Bank N.A., 880
F.2d 928, 938 (7th Cir. 1989) (en banc) (holding that Rule
23(e) fairness hearings are not exempt). The first two excep-
tions apply to determinations “on a preliminary question of fact
governing admissibility” and “grand-jury proceedings,” so
they are irrelevant. Fed. R. Evid. 1101(d)(1), (2). A third and
2
broader exception applies to “miscellaneous proceedings such
as: extradition or rendition; issuing an arrest warrant, criminal
summons, or search warrant; a preliminary examination in a
criminal case; sentencing; granting or revoking probation or
supervised release; and considering whether to release on bail
or otherwise.” Fed. R. Evid. 1101(d)(3). No civil proceedings
are listed in the miscellaneous-proceedings exception.
While the list is not exclusive, in context, the miscella-
neous-proceedings exception is best read as limited to closely
analogous collateral proceedings, like hearings to transfer a
juvenile delinquent for prosecution as an adult. See Gov’t of
Virgin Islands in Interest of A.M., 34 F.3d 153, 161–62 (3d Cir.
1994) (allowing hearsay in a juvenile transfer hearing because
the hearing was analogous to a preliminary examination in a
criminal case). Otherwise, the exception would swallow the
rule. Even if the exception may be extended to some ordinary
civil proceedings, class certification proceedings are not
closely analogous to any of the listed “miscellaneous proceed-
ings,” so context suggests they do not fall under this exception,
much like Rule 23(e) hearings. The conclusion is clear: Class
certification proceedings are not exempt from the rules of evi-
dence. See Anderson Living Tr. v. WPX Energy Prod., LLC,
306 F.R.D. 312, 378 n.39 (D.N.M. 2015) (“The similarity of a
class certification hearing to a trial suggests that a class certifi-
cation hearing is not a ‘miscellaneous proceeding such as’ a
hearing on sentencing, extradition, preliminary examination,
probation violation, or setting bail.”).
Our decision in Blood Reagents, moreover, prevents us
from dispensing with the Federal Rules of Evidence. The
District Court distinguished Blood Reagents as involving
expert evidence. Ollie’s, 2021 WL 1152981, at *5 n.5. But for
purposes of this question there is no principled basis for distin-
3
guishing between fact and expert evidence. Nothing in the
rules of evidence allows us to selectively apply them. On the
contrary, Federal Rule of Evidence 1101 says that “[t]hese
rules”—meaning all rules, including hearsay rules—apply to
civil proceedings generally. Fed. R. Evid. 1101(a), (b).
No hearsay exception applies to Rule 23 proceedings
either. Hearsay is generally inadmissible unless allowed by
rules adopted by the Supreme Court or statute. Fed. R. Evid.
802. Several rules of civil procedure permit proof by affidavit
instead of live testimony, allowing modest exceptions to the
hearsay rule. See, e.g., Fed. R. Civ. P. 4(l), 32(a)(1)(B), 65(b).
One general exception is Federal Rule of Civil Procedure
43(c). That rule allows affidavits “[w]hen a motion relies on
facts outside the record.” Fed. R. Civ. P. 43(c); see also 28
U.S.C. § 1746 (permitting the use of declarations instead). But
while Federal Rule of Civil Procedure 43(c) allows considera-
ble flexibility in avoiding the live testimony required by the
hearsay rule, it does not allow simply attaching hearsay—like
the customer complaints—to a motion. That is what happened
here.
In short, “simple logic indicates,” and statutory text
confirms, that Rule 23 is not satisfied when the “evidence prof-
fered would not be admissible as proof of anything.” Behrend
v. Comcast Corp., 655 F.3d 182, 215 n.18 (3d Cir. 2011)
(Jordan, J., concurring in the judgment and dissenting in part),
rev’d, 569 U.S. 27 (2013). Rigorous analysis and statutory text
demand nothing less than admissible evidence at the time of
certification.
4
II
Overlooking Federal Rule of Evidence 1101, several
circuits have held that the rules of evidence do not apply to
class certification proceedings. The first circuit to openly adopt
this approach was the Eighth Circuit. See In re Zurn Pex
Plumbing Prod. Liab. Litig., 644 F.3d 604, 611–14 (8th Cir.
2011). In Zurn, the Eighth Circuit affirmed a trial court’s
watered-down Daubert analysis, rejecting the defendants’
argument that evidence under Rule 23 must “ultimately be
admissible at trial.” Id. at 611. Judge Gruender dissented. Id. at
626–30. The Ninth Circuit followed some years later. In the
Ninth Circuit, “[i]nadmissibility alone is not a proper basis to
reject evidence submitted in support of class certification.” Sali
v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1004 (9th Cir.
2018).1 A trial court “may consider whether the plaintiff’s
proof is, or will likely lead to, admissible evidence.” Id. at
1006. “But admissibility must not be dispositive. Instead, an
inquiry into the evidence’s ultimate admissibility should go to
the weight that evidence is given at the class certification
stage.” Id. The Sixth Circuit has recently joined in part. It has
held, “as have the Eighth and Ninth Circuits, that . . . ‘eviden-
tiary proof’ need not amount to admissible evidence, at least
with respect to nonexpert evidence.” Lyngaas v. Curaden AG,
992 F.3d 412, 428–29 (6th Cir. 2021).
Several circuits disagree with some or all of this. The
First Circuit has rejected inadmissible hearsay evidence to sup-
port standing for class members, reasoning that “class certifi-
1
But see Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 639–
40 (9th Cir. 2010) (Ikuta, J., dissenting) (arguing that
inadmissible expert testimony cannot be used to meet Rule 23),
rev’d, 564 U.S. 338 (2011).
5
cation provides no occasion for jettisoning the rules of evi-
dence and procedure, the Seventh Amendment, or the dictate
of the Rules Enabling Act.” In re Asacol Antitrust Litig., 907
F.3d 42, 53 (1st Cir. 2018). That same logic would require
applying the Federal Rules of Evidence to support class certi-
fication. The Fifth Circuit has held that “findings must be made
based on adequate admissible evidence to justify class certifi-
cation.” Unger v. Amedisys Inc., 401 F.3d 316, 319 (5th Cir.
2005).2 At least two circuits have held, as we did in Blood
Reagents, that expert testimony must be admissible under
Daubert at the class certification stage. See Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 812–13 (7th
Cir. 2012); Prantil v. Arkema Inc., 986 F.3d 570, 575–76 (5th
Cir. 2021) (“[I]f an expert’s opinion would not be admissible
at trial, it should not pave the way for certifying a proposed
class.”).
I agree with the First and Fifth Circuits: Evidence used
to certify a class must be admissible. The Sixth, Eighth, and
Ninth Circuits overlook Federal Rule of Evidence 1101 and the
rigorous analysis required by precedent. The various argu-
ments they marshal in support of dispensing with the rules of
evidence are unpersuasive. I will address each argument in
turn.
2
The Sixth Circuit dismissed Unger’s admissibility
requirement as dictum. Lyngaas v. Curaden AG, 992 F.3d 412,
430 (6th Cir. 2021). But the Fifth Circuit has relied on Unger
to require admissible evidence. Prantil v. Arkema Inc., 986
F.3d 570, 575–76 & n.18 (5th Cir. 2021).
6
A
First, these circuits point to Rule 23(c)’s requirement
that class actions be certified at “an early practicable time after
a person sues or is sued as a class representative.” Sali, 909
F.3d at 1004 (quoting Fed. R. Civ. P. 23(c)(1)(A)). The need
for speed, these courts reason, weighs against applying the
Federal Rules of Evidence. That is unpersuasive. This rule was
amended in 2003 to abrogate the certify-first-ask-questions-
later practice followed in some circuits. In re Hydrogen
Peroxide Antitrust Litig., 552 F.3d 305, 318–19 (3d Cir. 2008).
Before 2003, Rule 23 said the class must be certified “as soon
as practicable after commencement of an action.” Id. at 318.
The change to “an early practicable time” was meant to encour-
age rigorous compliance with the requirements of Rule 23
before certifying a class. Id. Under the current rule, “class cer-
tifications are no longer conditional,” so a trial court “should
delay certifying a class until it is satisfied that all Rule 23
requirements have been met.” Zurn, 644 F.3d at 629(Gruender, J., dissenting). Requiring that evidence be admissi-
ble does not conflict with this open-ended rule. If anything, the
2003 amendment suggests trial courts should not defer admis-
sibility rulings relevant to certification until trial. See, e.g., Sali,
909 F.3d at 1006 (deferring admissibility in tension with 2003
amendment).
B
Second, these circuits assert that an order certifying a
class is merely “tentative” and “preliminary,” as “[a]n order
that grants or denies class certification may be altered or
amended before final judgment.” Id. at 1004 (quoting Fed. R.
Civ. P. 23(c)(1)(C)). Because class certification orders are not
technically final, “common sense,” they say, suggests “the for-
7
mal strictures of trial” should not apply at the certification
stage, including the Federal Rules of Evidence. Id. Otherwise,
they argue, class certification proceedings would turn into
evidentiary shooting matches. Id. For legal support, these cir-
cuits lean on the Supreme Court’s statement that in class pro-
ceedings, “a preliminary determination of the merits may result
in substantial prejudice to a defendant, since of necessity [a
class proceeding] is not accompanied by the traditional rules
and procedures applicable to civil trials.” Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 178 (1974), quoted in Zurn, 644 F.3d
at 613–14. There are many problems with this line of
argument.
For one, that snippet of Eisen preceded the 2003 amend-
ments to Rule 23 and has since been repudiated as dictum. The
relevant part of Eisen held only that class representatives could
not shift the cost of providing class-member notice to defend-
ants by showing the class was likely to prevail on the merits.
Eisen, 417 U.S. at 177–78. In Dukes, the Supreme Court said
that Eisen’s general warning against preliminary determina-
tions of the merits is “the purest dictum and is contradicted by
our other cases.” 564 U.S. at 351 n.6. Eisen’s related statement
about “traditional rules and procedures” is dictum too. For
good measure, Dukes also expressed “doubt” at the trial court’s
conclusion that Daubert did not apply when certifying a class.
Id. at 354. One could even say that “the Supreme Court has
expressed disapproval of the position taken by” the Sixth,
Eighth, and Ninth Circuits. Zurn, 644 F.3d at 627 (Gruender,
J., dissenting); see also Behrend, 655 F.3d at 215 n.18 (Jordan,
J., concurring in the judgment and dissenting in part) (noting
that “it is implicit” in Dukes that Daubert applies). But even if
it has not, after the 2003 amendments and Dukes, Eisen’s cryp-
8
tic dictum about “traditional rules and procedures” does not
support dispensing with the rules of evidence.
For another, Rule 23 certification orders are not “tenta-
tive” in any practical sense. Trial courts cannot make “tenta-
tive” Rule 23 findings. “When courts harbor doubt as to
whether a plaintiff has carried her burden under Rule 23, the
class should not be certified.” Steak ’n Shake, 897 F.3d at 483.
Under our precedent, “it is no longer accurate—however true
it might have been in the past—that class certification hearings
are preliminary or conditional in the sense that a judge is going
to go back and reconsider his or her class certification order.”
Linda S. Mullenix, Putting Proponents to Their Proof:
Evidentiary Rules at Class Certification, 82 Geo. Wash. L.
Rev. 606, 636 (2014). “Although a judge subsequently may
revise a class certification order, this practice has become
extremely rare.” Id. at 637. In all but exceptional cases, an or-
der certifying a class will be the trial court’s final word on the
matter.
For similar reasons, the rhetoric about evidentiary
shooting matches is also behind the times. Class certification
proceedings are already evidentiary shooting matches, some-
times requiring extensive evidentiary hearings. Id. at 639–41.
The question is whether the shooting match will be played
according to the uniform rules enacted by Congress, no rules
at all, or only the rules judges really like. The correct answer is
the rules enacted by Congress.
Characterizing Rule 23 orders certifying a class action
as “tentative” and “preliminary,” moreover, trivializes the con-
sequences of certifying a class. “As a practical matter, the cer-
tification decision is typically a game-changer, often the whole
ballgame, for plaintiffs and plaintiffs’ counsel.” Marcus v.
9
BMW of N. Am., LLC, 687 F.3d 583, 591 n.2. Rule 23(b)(2)
class certifications compel unnamed persons to join a lawsuit
they do not control, litigated by lawyers they did not choose,
where a judgment binds them, win or lose. Cooper v. Fed.
Reserve Bank of Richmond, 467 U.S. 867, 874 (1984); Dukes,
564 U.S. at 362. Defendants also face significant practical con-
sequences. Once a class is certified, the risk of “devastating
loss” often leads to “in terrorem” class settlements even for
“questionable claims.” AT&T Mobility LLC v. Concepcion,
563 U.S. 333, 350 (2011); see also Shady Grove Orthopedic
Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 445 n.3 (2010)
(Ginsburg, J., dissenting) (“A court’s decision to certify a class
. . . places pressure on the defendant to settle even unmeritori-
ous claims.”); Newton v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 259 F.3d 154, 165 (3d Cir. 2001) (“[C]ertifying the
class may place unwarranted or hydraulic pressure to settle on
defendants.”). And plaintiffs, too, may be denied meaningful
redress if defendants are allowed to defeat class actions by lard-
ing the record with inadmissible hearsay, unauthenticated rec-
ords, or unreliable opinion evidence. The search for truth
encouraged by the Federal Rules of Evidence cuts both ways.
C
The Eighth Circuit has also suggested that because class
certification findings are made by a judge, not a jury, there is
less reason to apply Daubert rigorously, and presumably other
rules of evidence too. Zurn, 644 F.3d at 613. But this distinc-
tion finds no support in the Federal Rules of Evidence or our
caselaw. The Federal Rules of Evidence require applying
Daubert faithfully in bench trials too. UGI Sunbury LLC v. A
Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832–33
(3d Cir. 2020). Some rules of evidence, to be sure, expressly
reference jury trials and do not apply to bench trials. Rule 403,
10
for example, allows a trial court to “exclude relevant evidence
if its probative value is substantially outweighed by a danger
of . . . misleading the jury.” Fed. R. Evid. 403. That rule is
irrelevant in a bench trial. But hearsay is generally inadmissi-
ble no matter who the trier of fact happens to be. Fed. R. Evid.
802. So, as with Daubert, there is no “bench trial” exception to
hearsay.
* * *
Reasonable minds may disagree over the wisdom or
practicality of applying the Federal Rules of Evidence, or hear-
say rules specifically, in Rule 23 certification proceedings. But
those policy judgments are for the Supreme Court and
Congress to make. See 28 U.S.C. § 2072(a). We must apply the
rules of evidence faithfully within their proper scope. That
scope includes Rule 23 proceedings.
11